How to Get a Restraining Order or Order of Protection in Your Custody Battle

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How to best plead your case for obtaining a restraining order or
order of protection in your custody or divorce case.*

*This video recording is for educational purposes only and should not be considered as the rendering of legal advice. The viewing of this recording does not create an attorney-client relationship. An attorney-client relationship is only formed when you have signed an engagement agreement. We cannot guarantee results. Past results do not guarantee future results. Consult with a licensed attorney for information regarding the specifics of your case.

Restraining orders can be called different things depending on the jurisdiction you live in. For example in Arizona there are 2 types of restraining order in the family law arena. One is called an order of protection & an order of protection could be placed into effect by a judge if a person comes in and is able to convince the judge that either domestic violence has occurred in a relationship or that it could occur in the relationship.

In this type of order you have to show the court that there's some sort of domestic relationship. It doesn't necessarily have to be a marriage. It could be a boyfriend/girlfriend type of situation or a living together situation.

The other type of restraining order in Arizona is called an injunction against harassment. So as far injunctions against harassment, there may not necessarily be domestic violence. Domestic violence is not needed to get an injunction against harassment, nor does there need to a romantic relationship.

But a person can get an injunction against harassment say for example somebody is just calling them over and over and over...or texting them over and over. Calling their work and they won't leave somebody alone. So those are the two different types of restraining orders that as a family law attorney in Arizona, I deal with the most.

So wherever you are, do your research. If you are in the family law court, find out what the restraining orders are specifically called and find out what's required and if there is more than one type of restraining order, find out what's required to get whatever type it is that you're seeking. Because this is the important point I want to make today.

Over the past few weeks I've gone to court on a couple of restraining orders and in both of these cases, I've represented the mothers in the relationship and both of these mothers are going through divorce cases. In one of the hearings for the restraining order that I have, it was along hotly contested hearing that lasted over two different court days. I really had myself convinced that we had enough to show the judge that either domestic violence had occurred or that an act of domestic violence could occur. However, the judge disagreed. The judge decided that he was going to squash my client's restraining order. It was upsetting to her, it was upsetting to me. But looking back at what she had originally told the court the reason why she was wanting that order of protection, what she had written down in her petition, I just don't think she had been specific enough in terms of what she said the other party had done.

In the other case we actually prevailed after our hearing and the judge was convinced that domestic violence had occurred and could occur in the future. In fact, in that particular case the judge took me and the other attorney back to his chambers. He said he was pretty concerned about my client's soon to be ex and that he thought he had some real serious problems.

So the difference between these two cases was the specificity that each of my clients went into when they initially got the restraining order. If you are seeking a restraining order it's really important to get your facts together and to be very specific when you're talking to the judge about why you need a restraining order. Write down specific dates and really a lot of details about what happened and when and how you felt as the act of harassment was taking place or the threats or acts of domestic violence. Recordings, text messages, emails, those are obviously going to be helpful if the other person challenges your restraining order and you have to go to a hearing whether it should be upheld. If you are the person who has a restraining order that's been placed against you and you are objecting to that, then these are the ways you can attack the restraining order that the other person obtained against you. Look at it and see how specific the details are. Are the statements that have been made in the petition very general. Is there any evidence to back up the statements that have been made. What's your side of the story?

Wendy Hernandez is a family law attorney in Phoenix, AZ and founder of Command the Courtroom.

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